ASSET PURCHASE AGREEMENT
THIS
ASSET PURCHASE AGREEMENT (this "Agreement") is made and entered into as of
this
4th day of August, 2005, by and between IMCOR Pharmaceutical Co., a Nevada
corporation located at X.X. Xxx 0000, Xx Xxxxx, XX 00000 (hereinafter known
as
“Seller”) and NanoScan Imaging, LLC, a Pennsylvania limited liability company
located at 0000 Xxxxx Xxxx, Xxxxxxxx, XX 00000 (hereinafter known as “Buyer”,
and Buyer and Seller are hereinafter each known as a “Party” and together known
as the “Parties”).
WITNESSETH:
WHEREAS,
Seller has been developing N1177, an iodine-based nanoparticulate contrast
agent, and PH-50, the same or a substantially similar compound for a different
indication;
WHEREAS,
Seller desires to sell to Buyer, and Buyer desires to buy from Seller, all
of
its assets exclusively related to N1177 and PH-50 and the development thereof
(the “Business”), including without limitation intellectual property rights and
all related documentation, manuals, notes, agreements and other assets necessary
or ancillary to the research and development of N1177 and PH-50 (collectively,
the “Assets”), all upon the terms and conditions and subject to the limited
exceptions set forth herein;
NOW,
THEREFORE, in consideration of the mutual representations, warranties,
covenants, and agreements of the parties hereinafter set forth, the parties
hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE
I
PURCHASE
AND SALE OF ASSETS
1.1 Purchase
and Sale of Assets.
Upon
the terms and subject to the conditions of this Agreement, Buyer agrees to
purchase, accept, and acquire from Seller, and Seller agrees to sell, transfer,
assign, convey, and deliver to Buyer, at the Closing (as hereinafter defined)
in
accordance with the terms of the Xxxx of Sale attached hereto as Exhibit
A,
and the
Assignment and Assumption Agreement attached hereto as Exhibit
B,
all
right, title and interest of Seller in and to the Assets. Without in any way
limiting the generality of the foregoing, the Assets shall include all right,
title and interest owned or held by Seller in the following:
a. N1177,
a
sterile, 150 mg/ml NanoCrystal®Colloidal
Dispersion tested as a parenteral iodinated x-ray contrast agent intended for
use as a CT lung imaging agent (but with other potential diagnostic
applications) which is being developed under Investigational New Drug
application 50,714 (the “IND”), and PH-50, which has the same or substantially
the same formulation and chemical composition as N1177, but is delivered
intravenously and used as a blood pool agent for enhancing CT imaging of the
circulatory system, and all attendant rights, agreements and technical and
other
documentation and correspondence, including but not limited to the following:
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i.
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The
IND, including without limitation:
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1.
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All
IND Annual Reports, company executive summaries, and electronic
files
[IMCOR and non-IMCOR]
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ii
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All
pharmacology and toxicology reports
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iii.
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All
pre-clinical study reports
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1.
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All
study reports for studies conducted by Photogen/IMCOR (i.e.
MPI Research,
Provident Preclinical, imaging studies, toxicology reports,
pathology
reports, etc.)
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iv.
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Any
and all rights (owned or licensed) to patents, copyrights, trademarks,
tradenames, and service marks, and applications or registrations
thereof,
trade secrets, know how, processes, technical information and
documentation (“Technical Documentation”), formulas, or other intellectual
property relating or pertaining to the Assets (collectively, the
“Intellectual Property Rights”).
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| v. | All rights under the License Agreement by and between The General Hospital Corporation (Massachusetts General Hospital) and Photogen, Inc., dated as of September 30, 1999 (the “License”), to the extent possible, the Cooperative Research and Development Agreement (“CRADA”) with the National Cancer Institute (“NCT”), and any other license, consulting agreement, or other contract relating to the Assets, including without limitation those set forth on Schedule 1 attached hereto (together with the License and CRADA, the “Assigned Contracts”), and any correspondence and other documents relating thereto. | |
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vi.
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All
cGLP and cGMP (N1177) Drug Product and N1177 and PH-50 Active
Pharmaceutical Ingredient supplies.
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b. Business
Records.
All
business, legal, regulatory and marketing records and documents associated
with
the Assets, including to the extent they exist operating records, contractor
and
supplier documentation and correspondence, all clinical and regulatory
documents, including minutes of meetings and focus groups, strategy documents
and market analysis, asset ledgers, inventory records, supplier lists,
information and data respecting leased or owned equipment, correspondence and
mailing lists, advertising materials and brochures, and other business records
used in the Business (the "Business Records"). Shipment of the Business Records
to the Buyer shall be at the expense of the Buyer.
c. Authorizations.
All
known approvals, authorizations, certifications, consents, variances,
permissions, licenses, and permits to or from, or filings, notices, or
recordings to or with, federal, state, and local governmental authorities or
other third parties related to the Business (the Authorizations").
1.2 Exclusions.
The
Assets shall not include any other assets of Seller, including without
limitation any cash, investment accounts, accounts receivable, prepaid expenses,
refunds owed for any early cancellations of insurance policies or benefit plans
or any similar cash equivalent assets, stock and minute books and other
corporate records, payroll records and tax returns.
ARTICLE
II
NO
ASSUMPTION OF LIABILITIES
Other
than the assumption of any obligations and liabilities accruing after the
Closing Date under the License and the other Assigned Contracts, at and after
the Closing, Buyer shall assume no liabilities of the Seller.
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ARTICLE
III
PRICE
AND PAYMENT
3.1 Purchase
Price.
The
aggregate purchase price for the Assets (the “Purchase Price”) shall be One
Hundred Seven Thousand Five Hundred Dollars ($107,500).
3.2 Payment.
On the
Closing Date, Buyer shall pay Seventy One Thousand Five Hundred Dollars
($71,500) of the Purchase Price to Seller by wire transfer to Seller’s bank
account pursuant to wire instructions provided by Seller, and Three Thousand
Five Hundred Dollars ($3,500) of the Purchase Price by check to X. Xxxxxx
Xxxxxxxx as a finder’s fee. Buyer will pay the remaining balance of Thirty Two
Thousand Five Hundred Dollars ($32,500) of the Purchase Price as follows: (i)
Thirty One Thousand Dollars ($31,000) to Seller by wire transfer upon receipt
of
the Business Records and written verification that the payment referenced in
Section 3.3 has been made and accepted by MPI as full and complete recognition
and satisfaction of any amounts owing to MPI, and (ii) One Thousand Five Hundred
Dollars ($1,500) by check to X. Xxxxxx Xxxxxxxx as a finder’s fee upon payment
of the amount referenced in (i) above..
3.3 Within
10
days of Closing, Seller will
pay
Ten Thousand Dollars ($10,000) to
MPI as
directed by MPI, as full and complete recognition and satisfaction of all of
Seller’s prior obligations to MPI.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES OF SELLER
Seller
hereby represents and warrants to Buyer as follows:
4.1 Organization
and Standing of Seller.
Seller
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Nevada and is qualified to do business as a foreign
corporation and is in good standing in the State of California and such other
states where the failure to be so qualified and in good standing would affect
the ability of Seller to enter into this Agreement, consummate the transactions
contemplated thereby, or to operate the business of Seller as it has previously
been operated.
4.2 Power
and Authority; Validity and Enforceability.
Seller
has the power and authority to operate its business as it has been and is
presently conducted and to execute, deliver, and perform this Agreement and
the
other agreements and instruments to be executed and delivered by it in
connection with the transactions contemplated hereby and thereby, it has taken
all necessary action to authorize the execution and delivery of this Agreement
and such other agreements and instruments and the consummation of the
transactions contemplated hereby and thereby. This Agreement is, and the other
agreements and instruments to be executed and delivered by Seller in connection
with the transactions contemplated hereby shall be, the legal, valid and binding
obligations of Seller, enforceable in accordance with their terms.
4.3 No
Conflict.
Neither
the execution and delivery of this Agreement and the other agreements and
instruments to be executed and delivered in connection with the transactions
contemplated hereby or thereby, nor the consummation of the transactions
contemplated hereby or thereby, will violate or conflict with (1) the Articles
of Incorporation or Bylaws of Seller, (2) to the Seller’s knowledge, any
federal, state, or local law, regulation, ordinance, governmental restriction,
order, judgment, or decree applicable to Seller or the Assets or Business,
or
(3) any mortgage, indenture, license, instrument, trust, contract, agreement,
or
other commitment or arrangement to which Seller is a party or by which Seller
or
any of the Assets is bound.
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4.4
Litigation.
Except
as set forth on Schedule 4.4, there are no pending or threatened actions, suits,
written or oral claims, litigation at law or in equity, or any proceedings
of
any kind, whether before a court, an arbitration or before any commission or
administrative or governmental authority or agency against or involving Seller
or any of its assets, including the Assets.
4.5 Required
Contract Consents.
No
approval, authorization, consent, permission, or waiver to or from, or notice,
filing, or recording to or with, any person is necessary for (1) the execution
and delivery of this Agreement and the other agreements and instruments to
be
executed and delivered in connection with the transactions contemplated hereby
or thereby by Seller or the consummation by Seller of the transactions
contemplated hereby; (2) the transfer and assignment to Buyer at Closing of
the
Assigned Contracts and other Assets, or (3) the ownership and use of the
Assets.
4.6 Asset
Encumbrances.
There
are no liabilities or obligations of Seller with respect to the Business or
the
Assets of any kind whatsoever, whether or not accrued, contingent or absolute,
determined or determinable, and there is no existing condition, situation or
set
of circumstances, including without limitation any verbal or written agreements
or arrangements between Seller and/or one of its creditors, shareholder or
any
third parties, which could result in such liability or obligation.
4.7
Taxes.
There
are
no liens for taxes other than for current taxes not yet due and payable upon
the
Assets.
4.8 Title
to Tangible Property.
Buyer
at Closing shall obtain good and marketable title to all of the tangible Assets
(i.e., raw material, Technical Documentation, Equipment, and Business Records),
free and clear of all title defects, liens, restrictions, claims, charges,
security interests, or other encumbrances of any nature whatsoever, including
any mortgages leases, chattel mortgages, conditional sales contracts, collateral
security arrangements, or other title or interest retention arrangements. To
the
Seller’s knowledge, all of the tangible Assets are in good operating order,
condition, and repair, ordinary wear and tear excepted, and are suitable for
use
in the ordinary course. Between
March 31, 2005 and the Closing Date, to the Seller’s knowledge, there has not
been any material adverse degradation to the general condition or value of
the
Assets, other than in the ordinary course.
4.9 Title
to Intellectual Property Rights.
a. Ownership.
Seller
is the owner of the Intellectual Property Rights that Buyer shall receive at
Closing. Schedule 1.1 sets forth all trademarks and service marks, all trade
names, all copyrights, and all filed patent applications and issued patents
owned or licensed by Seller and used for the operation of the Business relating
to the Assets as heretofore operated.
b. Absence
of Claims.
No
claims have been asserted by any person or entity for the use of the
Intellectual Property Rights, and Seller does not know of any valid basis for
any such claim. The use of the Intellectual Property Rights by the Seller does
not infringe on or misappropriate the patent, trademark, copyright, trade secret
or other intellectual property or ownership rights of any third
party.
4.10 Adequacy
of Technical Documentation.
The
Technical Documentation includes all documentation used in the Business as
well
as any pertinent commentary or explanation that may be necessary to render
such
materials understandable and usable by trained personnel in the life sciences
diagnostic industry.
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4.11 Assigned
Contracts.
The
Assigned Contracts listed in Schedule 1.1 constitute the material contracts,
agreements, licenses, and other commitments and arrangements necessary or
advisable for the conduct of the Business and use of the Assets as previously
conducted and used, and an accurate and complete copy of each of the Assigned
Contracts has been supplied to Buyer. Each Assigned Contract, including the
License: (i) sets forth the entire agreement and understanding between Seller
and the other parties thereto; and (ii) is valid, binding and in full force
and
effect, and there is no event which has occurred or exists, which constitutes
or
which, with notice, the happening of any event (including the sale of the
Assets) and/or the passage of time would constitute a default or breach under
any such Assigned Contract by Seller, or, to Seller’s knowledge, any other party
thereto, or would cause the acceleration of any obligation of any party thereto
or give rise to any right of termination or cancellation thereof. Seller has
no
actual knowledge or any reason to believe that any party to an Assigned Contract
will not fulfill its obligations thereunder. Seller has fulfilled, and has
taken
all action necessary to enable it to fulfill when due, all of its obligations
under each of the Assigned Contracts. No notice of any claim or default under
any of the Assigned Contracts, including the License, has been given to or
received by Seller. As of the date hereof, no amounts are due and owing by
Seller to any of the other parties under the License or other Assigned
Contracts.
4.12 Employees.
Buyer
shall have the right, but no obligation, to offer employment to any former
employees of Seller; there are no plans in effect or commitments for group
health insurance, group life insurance, profit-sharing, pension or retirement
or
any other plans or benefits to which any of Seller’s employees may be entitled
or which, as a result of the purchase contemplated by this Agreement, Buyer
will
be responsible to assume.
4.13 Third-Party
Interests or Marketing Rights in Licenses.
Seller
has not granted, transferred, or assigned any right or interest in the License,
the other Assigned Contracts, the Technical Documentation, or any other of
the
Intellectual Property Rights to any person or entity. There are no contracts,
agreements, licenses, and other commitments and arrangements in effect with
respect to the development, marketing, distribution, licensing, or promotion
of
the Assets, Business, the Technical Documentation, or the Intellectual Property
Rights by any independent contractor, distributor, sublicensor, or other
remarketer or sales organization.
4.14 Adequacy
of Authorizations; Compliance with Laws.
The
Authorizations constitute all approvals, authorizations, certifications,
consents, variances, permissions, licenses, or permits to or from, or filings,
notices, or recordings to or with, federal, state, or local governmental
authorities that are required for the ownership and use of the Assets and the
conduct of the Business as operated by Seller under federal, state and local
law, regulation, ordinance, governmental restriction, and any applicable order,
judgment, or decree. Seller is in compliance with all terms and conditions
of
such required Authorizations. All of the Authorizations are in full force and
effect, and no suspension or cancellation of any of them is being threatened,
nor will any of the Authorizations be affected by the consummation of the
transactions described in this Agreement, except to the extent any such
Authorizations are transferable only upon receipt of Required Contract Consents.
Seller is in compliance with all other applicable limitations, restrictions,
conditions, standards, prohibitions, requirements, obligations, schedules,
and
timetables contained in any law, regulation, rule or ordinance, order, decree,
judgment, notice, or demand letter issued, entered, promulgated, or approved
thereunder relating to or affecting the Business or the Assets.
4.15 Broker's
or Finder's Fees.
Seller
has not authorized any person to act as broker or finder or in any other similar
capacity in connection with the transactions contemplated by this Agreement
in
any manner that may or will impose liability on Buyer, other than X. Xxxxxx
Xxxxxxxx, who shall be paid the finders fee referenced in Section 3.2
hereof.
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4.16 Disclosure.
No
representation, warranty, or statement made by Seller in this Agreement contains
or will contain any untrue statement or omits or will omit to state any material
fact necessary to make the statements contained herein or therein not
misleading.
ARTICLE
V
REPRESENTATIONS
AND WARRANTIES OF BUYER
Buyer
hereby represents and warrants to Seller as follows:
5.1 Organization.
Buyer
is a limited liability company validly existing and in good standing under
the
laws of the Commonwealth of Pennsylvania.
5.2 Power
and Authority.
Buyer
has the requisite power and authority to conduct its business and to own and
lease its properties and assets and to execute, deliver, and perform this
Agreement and the other agreements and instruments to be executed and delivered
by it in connection with the transactions contemplated hereby and thereby.
Buyer
has taken all necessary corporate action to authorize the execution and delivery
of this Agreement and such other agreements and instruments and the consummation
of the transactions contemplated hereby and thereby. This Agreement is, and,
when such other agreements and instruments are executed and delivered, the
other
agreements and instruments to be executed and delivered by Buyer in connection
with the transactions contemplated hereby and thereby shall be, the legal,
valid, and binding obligation of Buyer, enforceable in accordance with their
terms.
5.3 Broker's
or Finder's Fees.
Buyer
has not authorized any person to act as broker, finder, or in any other similar
capacity in connection with the transactions contemplated by this Agreement
in
any manner that may or will impose liability on Seller.
5.4 No
Conflict.
Neither
the execution and delivery by Buyer of this Agreement and of the other
agreements and instruments to be executed and delivered by Buyer in connection
with the transactions contemplated hereby or thereby, nor the consummation
by
Buyer of the transactions contemplated hereby or thereby, will violate or
conflict with (1) to Buyer’s knowledge any federal, state, or local law,
regulation, ordinance, governmental restriction, order, judgment, or decree
applicable to Buyer, or (2) any provision of any governing or organizational
instrument of Buyer.
ARTICLE
VI
CONDITIONS
TO SELLER'S OBLIGATIONS
Each
of
the obligations of Seller to be performed hereunder shall be subject to the
satisfaction (or waiver by Seller) at or prior to the Closing Date of each
of
the following conditions:
6.1 Representations
and Warranties True at Closing Date.
Buyer's
representations and warranties contained in this Agreement shall be true and
correct on and as of the Closing Date with the same force and effect as though
made on and as of such date; Buyer shall have complied with the covenants and
agreements set forth herein to be performed by it on or before the Closing
Date;
and Buyer shall have delivered to Seller a certificate dated the Closing Date
and signed by a duly authorized officer of Buyer to all such
effects.
6
ARTICLE
VII
CONDITIONS
TO BUYER'S OBLIGATIONS
Each
of
the obligations of Buyer to be performed hereunder shall be subject to the
satisfaction (or the waiver by Buyer) at or prior to the Closing Date of each
of
the following conditions:
7.1 Representations
and Warranties True at Closing Date.
Seller's representations and warranties contained in this Agreement shall be
true on and as of the Closing Date with the same force and effect as though
made
on and as of such date; Seller shall have complied with the covenants and
agreements set forth herein to be performed by it on or before the Closing
Date;
and Seller shall have delivered to Buyer a certificate dated the Closing Date
and signed by a duly authorized officer of Seller to all such
effects.
7.2 Consents.
All
Required Contract Consents shall have been obtained.
7.3 No
Litigation.
No
Litigation shall be threatened or pending against Buyer or Seller before any
court or governmental agency that, in the reasonable opinion of counsel for
Buyer, is likely to result in the restraint or prohibition of any such party,
or
the obtaining of material damages or other relief from such party, in connection
with this Agreement, the consummation of the transactions contemplated hereby
or
the Assets to be purchased hereunder.
7.4
Documents
Satisfactory in Form and Substance.
All
agreements, certificates, and other documents delivered by Buyer to Seller
hereunder shall be in form and substance satisfactory to counsel for Seller,
in
the exercise of such counsel's reasonable judgment.
ARTICLE
VIII
CLOSING
8.1 Closing.
The
closing of the purchase and sale of the Assets ("Closing") shall take place
in
person or by phone and fax at 12:00 p.m. Eastern Time on August 4, 2005, or
on
such other time, date, and place as the parties may agree (the "Closing
Date").
8.2
Actions
at Closing.
At
Closing, Buyer and Seller shall take the following actions, in addition to
such
other actions as may otherwise be required under this Agreement:
a.
Copies
of Consents.
Seller
shall deliver to Buyer copies of all Required Consents.
b.
Conveyance
Instruments.
Seller
shall deliver to Buyer the Xxxx of Sale, the Assignment and Assumption
Agreement, assignments and such other instruments of conveyance and transfer
as
Buyer may reasonably request to effect the transfer and assignment to Buyer
of
the Assets.
c.
Certificates.
Each
party shall deliver the certificates required under Section 6.1 and 7.1,
respectively, as to the accuracy of the representations and warranties contained
herein, the compliance with the covenants and agreements contained herein,
and
the satisfaction of the conditions to Closing contained herein, as well as
a
Secretary’s Certificate with incumbency certifying as to organizational
documents and authorizing resolutions of each party.
8.3
Further
Assurances.
At and
after the Closing, without further consideration, Seller shall take all such
other action and shall procure or execute, acknowledge, and deliver all such
further certificates, conveyance instruments, consents, and other documents
as
Buyer or its counsel may reasonably request to vest in Buyer, and perfect
Buyer's right, title and interest in, and enjoyment of, the Assets and the
Business, including without limitation sending any necessary documentation
to
the Food and Drug Administration in order to transfer the IND into the name
of
Buyer or the Patent and Trademark Office in order to complete the assignment
of
any Intellectual Property rights being or intended to be assigned hereunder,
and
co-signing joint letters with Buyer to send to material vendors and other
parties relevant to the Business to notify them of the sale of
Assets.
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ARTICLE
IX
INDEMNITY
9.1 Indemnification
by Seller.
Seller
shall indemnify, defend, and hold harmless Buyer and its respective successors
and assigns and the directors, officers, employees, and agents of each at,
and
at any time after (subject to the limitations herein), the Closing, from and
against any and all demands, claims, actions, or causes of action, assessments,
losses, damages, liabilities, costs, and expenses, including reasonable fees
and
expenses of counsel, other expenses of investigation, handling, and litigation,
and settlement amounts, together with interest and penalties (collectively,
a
"Loss" or "Losses"), asserted against, imposed upon, or incurred by the Buyer,
to the extent caused by, resulting from, or arising out of any of the
following:
a.
Breach
of Representations, Warranties, Covenants or Obligations.
Any
breach of any representation, warranty, covenant or obligation of Seller
contained in or made pursuant to this Agreement, including the agreements and
other instruments contemplated hereby.
b.
Operation
of Business and use of Assets.
Any
liabilities or obligations of Seller of any kind or nature whatsoever, whether
accrued, absolute, contingent, or otherwise, known or unknown, arising out
of or
in connection with the operation of the Business or the ownership or use of
the
Assets, or Seller’s or its affiliates’ assets or business generally, prior to
the Closing Date.
c.
Failure
to Obtain Consents.
Any
failure to obtain the Required Contract Consents.
d.
Claims.
Any of
the matters listed in Schedule 4.3 or other claims based upon operations of
the
Business prior to the Closing Date.
e.
Noncompliance
with Bulk Sales Law.
Any
failure to comply with any "bulk sales" or similar laws relating to notices
to
creditors or taxing authorities.
9.2 Indemnification
by Buyer.
Buyer
shall indemnify, defend, and hold harmless Seller and its respective successors
and assigns and the directors, officers, employees, and agents of each at,
and
at any time after (subject to the limitations herein), the Closing, from and
against any and all Losses asserted against, imposed upon, or incurred by the
Seller, to the extent arising from any of the following:
a.
Breach
of Representations, Warranties, Covenants or Obligations.
Any
material breach of any representation, warranty, or obligation of Buyer
contained in or made pursuant to this Agreement, including the agreements and
other instruments contemplated hereby.
b.
Operation
of Business and Use of Assets.
Buyer’s
operation of the Business and use of the Assets from and after the Closing
Date,
including the assumed liabilities.
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9.3
Procedures
for Indemnification.
a. Each
indemnified party shall promptly give notice hereunder to the indemnifying
party
after becoming aware of any claim as to which recovery may be sought against
the
indemnifying party because of the indemnity in this Article IX, and, if such
indemnity shall arise from
the
claim of a third party, shall permit the indemnifying party to assume the
defense of any such claim and any litigation or other proceeding resulting
from
such claim; provided,
that
any indemnified party may, in any event, at its own expense, monitor and
participate in, but not control, the defense of any such claim or litigation.
Notwithstanding the foregoing, the right to indemnification hereunder shall
not
be affected by any failure of an indemnified party to give such notice (or
by
delay by an indemnified party in giving such notice) unless, and then only
to
the extent that, the rights and remedies of the indemnifying party shall have
been prejudiced as a result of the failure to give, or delay in giving, such
notice. The notice required hereunder shall specify the basis for the claim
for
indemnification to the extent ascertainable at the time of the notice. Failure
by the indemnifying Party to notify an indemnified party of its election to
defend any such claim or action by a third party within 30 days after notice
thereof shall have been given to the indemnifying party shall be deemed a waiver
by the indemnifying party of its right to defend such claim or
action.
b.
The
indemnifying party shall not, in the defense of such claim or any litigation
resulting therefrom, consent to entry of any judgment (other than a judgment
of
dismissal on the merits without costs) or enter into any settlement, except
with
the written consent of the indemnified party, which consent shall not be
unreasonably withheld, conditioned or delayed, which does not include as an
unconditional term thereof the giving by the claimant or the plaintiff to the
indemnified party a release from all liability in respect of such claim or
litigation.
c.
If the
indemnifying party shall not assume the defense of any such claim by a third
party, or litigation resulting therefrom, after receipt of notice from the
indemnified party, the indemnified party may defend against such claim or
litigation in such manner as it deems appropriate.
ARTICLE
X
CONFIDENTIALITY
10.1 Confidentiality
Obligation of Seller Following Closing.
Following the Closing, except to the extent required to disclose by law,
regulation, or a valid and effective subpoena or order issued by a court of
competent jurisdiction or by a governmental body, Seller shall not disclose
to
any person without the prior written consent of Buyer, and not use in any manner
whatsoever, except in order to defend any claim, any non-public, confidential
business or technical information remaining in its possession concerning the
Business or the Assets. Such confidential information specifically includes
all
Technical Documentation pertaining to the Assets and the Business, including
any
proposed design and specifications for future products and products in
development, marketing plans, and all other technical and business information
concerning the Assets and the Business. Promptly following Closing, Seller
shall
surrender to Buyer all materials remaining in its possession containing any
such
confidential information, including all copies, extracts, adaptations, and
transcriptions thereof.
10.2 Scope
of Confidential Information.
For
purposes of this Agreement, information shall not be deemed confidential (1)
if
such information is available from public sources; (2) if such information
is
received from a third party not under an obligation to keep such information
confidential; or (3) if such information can be shown to have been independently
developed by the recipient.
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ARTICLE
XI
MISCELLANEOUS
11.1 Entire
Agreement.
This
Agreement (including the Schedules), and the other certificates, agreements
and
instruments to be executed and delivered by the parties in connection with
the
transactions contemplated hereby, constitutes the sole understanding of the
parties with respect to the subject matter hereof. No amendment, modification
or
alteration of the terms or provisions of this Agreement shall be binding unless
the same shall be in writing and duly executed by the parties
hereto.
11.2 Parties
Bound by Agreement; Successors and Assigns.
The
terms, conditions and obligations of this Agreement shall inure to the benefit
of and be binding upon the parties hereto and the respective successors and
assigns thereof. Without the prior written consent of the other party, Buyer
may
assign its rights, duties, or obligations hereunder or any part thereof to
any
other person or entity, who shall thereupon become Buyer, provided that at
the
time of such assignment Buyer unconditionally and irrevocably guarantees the
payment and performance of any duties or obligations so assigned.
11.3 Counterparts.
This
Agreement may be executed in one or more counterparts, each of which shall
for
all purposes be deemed to be an original and all of which shall constitute
one
and the same instrument.
11.4 Headings.
The
headings of Articles and Sections of this Agreement are inserted for convenience
only and shall not be deemed to constitute part of this Agreement or to affect
the construction hereof.
11.5 Modification
and Waiver.
Any of
the terms or conditions of this Agreement may be waived in writing at any time
by the party that is entitled to the benefits thereof. No waiver of any of
the
provisions of this Agreement shall be deemed to be or shall constitute a waiver
of any other provision hereof (whether or not similar).
11.6 Expenses.
Seller
and Buyer shall each pay all costs and expenses incurred by it or on its behalf
in connection with this Agreement and the transactions contemplated hereby,
including fees and expenses of its own financial consultants, accountants,
and
counsel.
11.7 Notices.
Any
notice, request, instruction, or other document to be given hereunder by any
party hereto to any other party hereto shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, to a Party
as follows:
|
if
to Seller
X.X.
Xxx 0000
Xx
Xxxxx, XX 00000
Attn:
Xxxx XxXxxxxx
|
if to Buyer to:
NanoScan Imaging, LLC
0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: X. Xxxxxx
Xxxxxxxx
|
||
or
at
such other address for a party as shall be specified by like notice. Any notice
that is delivered personally in the manner provided herein shall be deemed
to
have been duly given to the party to whom it is directed upon actual receipt
by
such party (or its agent for notices hereunder). Any notice that is addressed
and mailed in the manner herein provided shall be conclusively presumed to
have
been duly given to the party to which it is addressed at the close of business,
local time of the recipient, on the third business day after the day it is
so
placed in the mail.
10
11.8 Governing
Law.
This
Agreement shall be construed in accordance with and governed by the internal
laws of the Commonwealth of Pennsylvania without giving effect to the principles
of conflicts of law thereof..
The
parties hereby irrevocably agree to submit to the exclusive jurisdiction of
the
Court of Common Pleas of Xxxxxxxxxx County, Pennsylvania or the Federal District
Court of the Third Circuit in Eastern Pennsylvania.
11.9 Public
Announcements.
Seller
and Buyer shall consult with each other before issuing any
press
releases or otherwise making any public statements with respect to this
Agreement and the transactions contemplated hereby. Neither Seller nor Buyer
shall issue any such press release or make any public statement without the
agreement of the other Party, except as such Party's counsel advises in writing
may be required by law, including but not limited to Seller’s obligation to
disclose this Agreement in a Form 8-K.
11.10 Survival.
All
covenants, agreements, representations and warranties made
herein
shall survive the execution and delivery of this Agreement and the
Closing.
IN
WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be
executed on its behalf by its duly authorized representative on the date first
set forth above.
| IMCOR PHARMACEUTICAL CO. | NANOSCAN IMAGING, LLC | ||
| /s/ Xxxx XxXxxxxx | /s/ X. Xxxxxx Xxxxxxxx | ||
|
Name:
Xxxx XxXxxxxx
Title: Chief Operating Officer
|
Name: X. Xxxxxx Xxxxxxxx
Title: Chief Executive
Officer
|
11
